Crown appeal seeks new murder trial after accused gang leader Nick Chan freed due to delays

The Crown is appealing a Calgary judge's decision to stay all charges against Nick Chan and seeking a new murder trial for the alleged gang leader.

Calgary judge issued stay before alleged gang leader Nick Chan's murder trial could begin

Nick Chan leaves the Calgary Court Centre Tuesday after being acquitted on charges of murder, conspiracy to commit murder and instructing a criminal organization. (Meghan Grant/CBC)

The Crown is appealing a Calgary judge's decision to stay all charges against Nick Chan and seeking a new murder trial for the alleged gang leader.

Charges of murder, conspiracy to commit murder and instructing a criminal organization were stayed by Court of Queen's Bench Justice Paul Jeffrey on Tuesday, when he ruled Chan's right to be tried within a reasonable time had been violated.

The notice of appeal was filed by the Crown on Wednesday.

The grounds for the appeal include that the trial judge erred in finding Chan's Charter rights were violated by the delay between arrest and trial, and that the "judge's conduct created a reasonable apprehension of bias."

Chan's jury trial was supposed to begin Monday, but in the past weeks, Crown and defence lawyers had been arguing a number of pretrial motions.

On Friday, Jeffrey ruled the prosecution's key witness would not be permitted to testify.

On Monday, prosecutors consented to Chan's release from the Calgary Remand Centre, where he's been held pending trial since 2013.

The plan was to reconvene Tuesday morning, at which time jurors would be instructed to acquit Chan without having heard any evidence.

But on Tuesday morning, Jeffrey said that wouldn't be necessary and instead ordered a stay on all charges after finding Chan's right to be tried in a reasonable time had been violated. The issue had been argued weeks before by lawyers, but had not yet been decided by the judge.

Premier, opposition leader raise issue in QP

In question period on Wednesday United Conservative Party leader Jason Kenney cited the Chan decision when he accused the NDP government of failing to follow through on its commitment to triage cases involving serious violent offences.

"The government told us they were giving prosecutors the tools to focus on serious and violent crimes a year ago, clearly that hasn't happened," said Kenney. "Why are we seeing serious violent criminals released before they can be brought to justice?"

Last year, Chan's trial was adjourned and rescheduled into 2018 because he had a new lawyer. At that time, Chan waived the delay, meaning that time period counted against the defence in calculating the timeline. 

Both NDP Premier Rachel Notley and Justice Minister Kathleen Ganley responded but said they were limited in what they could say based on the recent appeal and the fact the case is still before the courts.

"Organized crime is a scourge on our communities and we must do everything we can to stop it, and we must support our law enforcement officers in the very complex work that is associated with investigating and prosecuting that kind of crime," said Notley.

Gangs: FOB vs. FK

Chan, who is said to be the leader of the Fresh Off the Boat (FOB) gang, was charged with first-degree murder in the death of Kevin Anaya, who was linked to the rival Fresh off the Boat Killers (FK). 

Between 2002 and 2009, 25 people in Calgary were killed in the FOB vs. FK gang war. 

A massive police investigation dubbed Operation Desino ended in July 2013 with six people, including Chan, facing numerous murder charges. 

As part of that operation, several confessed killers were granted immunity or partial immunity deals in exchange for their testimony. 

3 trials, no convictions

Chan faced three trials since his arrest.

In 2016, a jury acquitted Chan of the Bolsa Restaurant triple murder, which took place on New Years Day 2009.

In 2017, a judge found Chan not guilty of a number of firearms offences

And on Tuesday, Jeffrey stayed all charges — murder, conspiracy to commit murder and instructing a criminal organization — after ruling Chan's case had taken too long to get to trial.

It is unclear how much of the delay (between the time Chan was arrested in 2013 and his final scheduled trial) was attributable to the defence and how much Jeffrey considered court or Crown delay.

The Supreme Court's so-called Jordan decision put hard timelines on how long criminal cases have between arrest and trial before it's considered a violation of an accused's Charter rights. Superior court cases like Chan's have 30 months to make it to trial. But the calculations are not cut and dried: they are based on who caused the delay.

About the Author

Meghan Grant

CBC Calgary reporter

Meghan Grant is the courts and crime reporter for CBC Calgary.